Moeller v. Weber (635 F. Supp. 2d 1036, 2009)

MEMORANDUM OPINION AND ORDER RE: APPLICATION FOR RELIEF UNDER 28 U.S.C § 2254 AND CERTIFICATE OF APPEALABILITY

LAWRENCE L. PIERSOL, District Judge.

Pending before this Court is Petitioner Donald Moeller’s Third Amended Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief. Petitioner has submitted his Traverse (Doc. 14), Respondent has submitted a Reply to the Traverse (Doc. 18), and Petitioner has also submitted a sur-reply (Doc. 19). In addition, the Court, heard oral argument on February 23, 2009, on the habeas corpus issues raised in the -Third Amended Petition.

Severance of Causes of Action

In this Court’s February 3, 2009 Order scheduling Oral Argument (Doc. 102) this Court directed the parties to be prepared to discuss whether the habeas cause of action under 28 U.S.C. § 2254 should now be severed from Moeller’s cause of action under 42 U.S.C. § 1983 or alternatively, under 28 U.S.C. § 2201, challenging South Dakota’s lethal injection method of execution. After the United States Supreme Court handed down its decision in Hill v. McDonough, 547 U.S. 573, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006), which allowed a timely filed 1983 action to challenge the constitutionality of the manner in which a lethal injection execution is conducted, and after the 2007 amendments to S.D.C.L. § 23A-27A-32, the statute which establishes South Dakota’s lethal injection protocol, became effective, Petitioner filed an Amended Motion for Leave to Serve a Third Amended Petition for Writ of Habeas Corpus And Complaint for Declaratory and Injunctive Relief under 42 U.S.C. § 1983, or alternatively, under 28 U.S.C. § 2201, for violation of his civil rights under state law with regard to the lethal injection protocol which would apply to his execution. Doc. 54. Since the United States Supreme Court has concluded that the difference in remedy between a habeas claim and a Section 1983 claim does not ipso facto preclude their joinder in a single lawsuit, see Wolff v. McDonnell, 418 U.S. 539, 554, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Preiser v. Rodriguez, 411 U.S. 475, 499 n. 14, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), and since joinder is generally encouraged to avoid multiplicity of actions, this Court allowed Moeller to amend his habeas petition to add the cause of action. Subsequently, delays in discovery caused by the development of a new lethal injection protocol in South Dakota and the departure of habeas counsel to begin a new position as a state magistrate judge have caused this Court to reconsider the benefits of joinder of the habeas claim and Section 1983 claim. Counsel for the Respondent advised at oral argument that Respondent favors severing the causes of action, and Moeller’s habeas counsel acknowledged that severance would be beneficial to replacement habeas counsel. For these reasons, the Court is severing the Habeas Corpus Petition under 28 U.S.C. § 2254 and the cause of action for Declaratory and Injunctive Relief with regard to the lethal injection protocol which would apply to Moeller’s execution.

Counsel for Respondent advised the Court at oral argument that the rulemaking on the new lethal injection protocol was not yet complete. The Court is therefore staying discovery on the lethal injection protocol until the rule-making process is completed and denying Moeller’s Motions to Compel Discovery (Doc. 87, 90) and denying the Respondent’s Motion for Protective Order (Doc. 80) without prejudice to the parties to reassert any discovery issues which have not yet been resolved at the time the rule-making process is completed and the Court and Moeller’s replacement counsel have been informed that the rule-making process is completed. In light of this Court’s ruling on severing Moeller’s causes of action this Memorandum Opinion addresses only the habeas claims made by Moeller pursuant to 28 U.S.C. § 2254.'

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of May 8, 1990, nine-year-old Rebecca O’Connell of Sioux Falls was reported missing. The next day, her body was found in a wooded area in Lincoln County, South Dakota. An autopsy revealed that Rebecca had been vaginally and anally raped, and had been stabbed in her neck, back, shoulder, chest, hip, arms and hands. She died as a result of a cut to her jugular vein. Circumstantial evidence linked Moeller to the crime and he was interviewed by the police and provided blood and hair samples on May 12, 1990. On May 13, 1990, Moeller fled from Sioux Falls and eventually resided in Tacoma, Washington where he used a fictitious name. He was located in Tacoma, Washington in February of 1991 and brought back to South Dakota and prosecuted for Rebecca’s murder. After being convicted by a jury of first-degree rape and first-degree murder, and after being sentenced to death by lethal injection, Moeller’s conviction was reversed by the South Dakota Supreme Court. See State v. Moeller, 548 N.W.2d 465 (S.D.1996).

Moeller was retried in April and May of 1997. He was again convicted by a jury of first-degree rape and first-degree murder, and sentenced to death by lethal injection. The South Dakota Supreme Court affirmed the 1997 convictions and denied rehearing. See State v. Moeller, 616 N.W.2d 424 (S.D.2000). Moeller sought and was denied a writ of habeas corpus in state court. The South Dakota Supreme Court affirmed the denial of state habeas relief. See Moeller v. Weber, 689 N.W.2d 1 (S.D.2004). Moeller timely filed for federal habeas relief pursuant to 28 U.S.C. § 2254.

REQUIREMENTS FOR HABEAS RELIEF

Under 28 U.S.C. § 2254(d), a habeas petitioner whose claims were adjudicated on the merits in state court is not entitled to relief unless he can demonstrate that the state court’s adjudication of his claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

A decision by a state court is “contrary to” law clearly established by the Supreme Court if it “applies a rule that contradicts the governing law set forth in [Supreme Court] cases” or if it “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from our precedent.” Williams v. Taylor, 529 U.S. 362, 405-406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). See also Price v. Vincent, 538 U.S. 634, 640, 123 S.Ct. 1848,155 L.Ed.2d 877 (2003).

With regard to establishing the existence of an “unreasonable application” of clearly established law, a federal habeas court may not grant habeas relief simply because that court concludes in its independent judgment that the state-court decision applied a decision of the Supreme Court incorrectly. See Bell v. Cone, 535 U.S. 685, 698-699, 122 S.Ct. 1843, 152 L.Ed.2d 914(2002). Rather, the habeas applicant has the burden to show that the state court applied Supreme Court case law to the facts of his case in an objectively unreasonable manner. See Price v. Vincent, 538 U.S. at 641, 123 S.Ct. 1848.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the question of whether there was “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding” is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable. See Williams v. Taylor, 529 U.S. at 410, 120 S.Ct. 1495. In addition, the AEDPA also requires federal habeas courts to presume the correctness of the state courts’ factual findings unless an applicant rebuts this presumption with “clear and convincing evidence.” § 2254(e)(1). See also Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1939-1940, 167 L.Ed.2d 836 (2007).

ISSUE I

WHETHER THERE WAS A FAILURE TO FOLLOW SOUTH DAKOTA’S STATUTORY DEATH PENALTY PROCEDURE WHICH DEPRIVED MOELLER OF HIS RIGHTS TO DUE PROCESS OF LAW, AND EQUAL PROTECTION OF THE LAWS, AND WHICH VIOLATED THE DOCTRINE OF SEPARATION OF POWERS?

Moeller alleges that numerous failures to follow the statutory procedures of S.D.C.L. ch. 23A-27A constitute structural error that affected the entire trial process from the initial offer of a plea bargain, to the selection of a death qualified jury, and throughout the conduct of the trial and penalty phase of the trial. Moeller also contends that this structural error existed in the South Dakota Supreme Court’s proportionality analysis and decision on appeal. Moeller’s traverse in addressing this issue focuses on proportionality review and prosecutorial discretion. Proportionality Review

S.D.C.L. § 23A-27A-12 requires that the South Dakota Supreme Court in reviewing a case in which a sentence of death was imposed determine “[wjhether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” S.D.C.L. § 23A-27A-8 provides that the South Dakota Supreme Court “accumulate the records of all capital felony cases that the court deems appropriate.” The South Dakota Supreme Court has determined that similar cases for purposes of proportionality review are those cases in which capital sentencing proceeding was actually conducted See State v. Rhines, 548 N.W.2d 415 (S.D. 1996). The South Dakota Supreme Court rejected Moeller’s contention that by restricting proportionality review to the decisions of other capital sentencing authorities, it was abridging all of Moeller’s rights to due process and equal protection of the laws as protected under the Fourteenth Amendment. Moeller v. Weber, 689 N.W.2d at 18. Although Moeller maintains that the South Dakota Supreme Court erred in construing its proportionality review statute, federal habeas relief may not be based on a mere perceived error of state law. See Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984).

The Supreme Court has consistently held that the Eighth Amendment does not require proportionality review by an appellate court in every case in which such review is requested by the defendant. See Pulley v. Harris, 465 U.S. at 50-51, 104 S.Ct. 871; see also Walker v. Georgia, — U.S. -, 129 S.Ct. 481, — L.Ed.2d -- (2008)(denial of petition of certiorari in which petitioner claimed Georgia Supreme Court erred in applying its statutorily required proportionality review). Although proportionality review is not mandated by the Constitution, once it is required by statute it must be conducted consistently with the Due Process Clause. See Tokar v. Bowersox, 198 F.3d 1039, 1052 (8th Cir.1999). In Moeller’s direct review the South Dakota Supreme Court, after analyzing the facts of Moeller’s case and comparing those facts to the other cases in the proportionality pool, concluded that the sentence of death was neither excessive nor disproportionate to the penalty imposed in similar cases, after considering both the crime and the defendant. State v. Moeller, 616 N.W.2d at 463-465. Having conducted this review and having made this determination, the South Dakota Supreme Court satisfied the due process requirement. The Federal courts do not look behind this determination to consider the manner in which the state Supreme Court conducted its proportionality review or whether the state Supreme Court misinterpreted its state statute in conducting its review. Tokar v. Bowersox, 198 F.3d at 1052.

Prosecutorial Discretion

Moeller contends that in South Dakota there are no standards that govern a prosecutor’s decision to seek the death penalty and that charging decisions in South Dakota are based on considerations other than the statutory factors required to impose the death penalty. Moeller contends that these alleged facts support his argument that he was deprived of due process and equal protection of the law, and that the doctrine of separation of powers was violated. In rejecting this argument South Dakota Supreme Court stated,

Unquestionably, the State in the exercise of its discretion may choose whether to prosecute individuals and what charges to bring against them. There is also no question that this general principie extends to the prosecution of a person suspected of committing a crime for which the penalty, upon conviction, is either life imprisonment or execution by lethal injection.

Moeller v. Weber, 689 N.W.2d at 14. In the context of this case, this conclusion is neither contrary to, nor involves an unreasonable application of clearly established Federal law. The Supreme Court has recognized that the implementation of criminal laws against murder requires discretionary judgment and that exceptionally clear proof would be required before the Court would infer abuse of that discretion. See McCleskey v. Kemp, 481 U.S. 279, 297, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). Moeller does not and can not argue that the acts for which he was convicted are not those for which both South Dakota law and the United States Constitution permit the imposition of the death penalty. Moeller only establishes that a number of South Dakota cases, involving one in which a child was murdered, resulted in life sentences. Moeller’s speculation regarding and challenges to the policy considerations behind the State’s decision to seek the death penalty are considerations more properly to be considered by the State Legislature. The arguments he presents regarding prosecutorial discretion do not support federal habeas relief.

Although Moeller contends that the numerous alleged failures to follow State law call into question the accuracy and reliability of the trial process and require automatic reversal, Moeller has failed to demonstrate that the South Dakota Supreme Court’s consideration of his issues regarding failure to follow the State’s death penalty statutes resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court. Moeller is not entitled to habeas relief for the alleged failure to follow the statutory procedures set forth in S.D.C.L. ch. 23A-27A.

ISSUE 2

WHETHER THE DENIAL OF A CONTINUANCE RESULTED IN DEPRIVATION OF CONSTITUTIONAL RIGHTS WHICH ENTITLE MOELLER TO FEDERAL HABEAS RELIEF?

In Grounds Two and Three of Moeller’s Third Amended Habeas Petition Moeller asserts that the trial court’s decision to deny his repeated motions for a continuance was a structural error which affected every phase of the trial and which consequently deprived him of his rights to due process of law and effective assistance of counsel. In Ground Four of Moeller’s Third Amended Habeas Petition Moeller asserts that the trial court’s decision to deny his repeated motions for a continuance of the Daubert hearing concerning DNA evidence was a trial error that had substantial and injurious effect or influence in determining the jury’s verdict and thereby deprived him of his rights to due process of law and effective assistance of counsel.

The United States Supreme Court has characterized the due process ramifications of a denial of a continuance as follows:

The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 [ (1940) ]. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 [ (1954) ]. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.

Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964).

In Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983), the Supreme Court addressed the Sixth Amendment ramifications of a denial of a request for continuance. The Court advised that “[n]ot every restriction on counsel’s time or opportunity to investigate or to consult with his client or otherwise to prepare for trial” violates the Sixth Amendment. The Court again maintained that “broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay’ violates the right to the assistance of counsel.” Morris v. Slappy, 461 U.S. at 11-12, 103 S.Ct. 1610 (quoting Ungar v. Sarafite, 376 U.S. at 589, 84 S.Ct. 841).

The above decisions set forth the governing constitutional rules “at a high level of generality.” See Middleton v. Roper, 498 F.3d 812, 817 (8th Cir.2007). Under the AEDPA “[t]he more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004), quoted in Middleton v. Roper, 498 F.3d at 817.

With regard to the request for a continuance of the trial, the South Dakota Supreme Court found that Moeller had approximately ten months from the date the remittitur was filed in Moeller I to prepare his defense. The South Dakota Supreme Court further found that this was an adequate amount of time for the two attorneys who represented Moeller at his first trial and who were familiar with the evidence in the case to prepare for the retrial. The South Dakota Supreme Court’s review of the record led it to conclude that both of his defense attorneys worked diligently to prepare an effective defense and did an admirable job in presenting a thorough case. The South Dakota Supreme Court further found that the trial court did not abuse its discretion in denying the continuance requests. State v. Moeller, 616 N.W.2d 424, 432 (S.D.2000).

With regard to the request for continuance of the Daubert hearing, after the State filed motions on December 11, 1996, identifying the DNA evidence it planned to introduce at trial, and which was to be the subject of a scheduled January Daubert hearing, Moeller’s counsel’s request for the continuance of the Daubert hearing was granted. Since the Defense claimed that they would not have adequate time to discover and review the results because the State had not yet completed testing on all anticipated DNA evidence, the trial court re-scheduled the Daubert hearing to March 3, 1997. State v. Moeller, 616 N.W.2d at 433.

On February 19, 1997, Moeller filed a third Daubert hearing continuance request, claiming that his counsel had not received the DNA test results in time to conduct a meaningful review, that they had underestimated the necessary preparation time, and that there a conflict between the hearing date and the defense expert’s schedule. The trial court denied the motion as untimely, stating that the defense had approximately three months’ advance notice of the specific DNA testing which the State intended to introduce at trial.

At the beginning of the Daubert hearing which was held on March 3-4, 1997, one of Moeller’s attorneys stated to the trial court:

Mr. Butler and I are totally unprepared to participate in this particular hearing on DNA evidence today.... I can state on behalf of myself and Mr. Butler categorically that he’s not being competently and adequately represented at this particular case. That we have no witnesses. We’ve been unable to consult with our consultant. We have not had adequate time to secure expert witnesses for the purposes of this hearing or even commence the preparation of the intricacies in connection with this matter.

Although the hearing was held as scheduled, Moeller’s attorneys conducted almost no cross-examination of the State’s experts and presented no expert of their own to rebut the State’s expert testimony. Although the trial court granted the Defense request for a standing objection to any testimony concerning the admissibility of the DNA evidence, the trial court subsequently granted the State’s motion to admit the DNA evidence, after it found that the evidence met the Daubert standards of relevance and reliability.

In addressing Moeller’s claim that he was not adequately prepared for the Daubert hearing, the trial court stated:

The Defendant was afforded every opportunity to present evidence and choose [sic] not to take advantage of that opportunity. The court would assume that counsel for the defendant would argue that they were not afforded an “opportunity” because they were not given the time that they wanted to prepare

A fair interpretation of [the] facts indicates that the defense’s claims that they had no witnesses, had been .unable to consult with their consultant, and had not had adequate time to secure expert witnesses for the hearing or to commenee the preparation of the “intricacies” in connection with the DNA is not credible. The court would conclude that the decision by the defense not to present witnesses or examine witnesses at the Daubert hearing was a tactical decision made with the intent to create the appearance of error and not the result of being denied an opportunity to do so.

On review, the South Dakota Supreme Court noted that a DNA expert had been appointed for Moeller in October 1996, and that this expert was present for all of the State’s testing of DNA evidence that was admitted at trial. The South Dakota Supreme Court reviewed the record to report that Moeller had the results of the DNA tests for all markers in his possession more than 5 weeks in advance of the Daubert hearing. The South Dakota Supreme Court also noted that one continuance had been previously granted to allow the defendant additional time to prepare for the hearing, and that Moeller had not specifically shown how a second continuance would have aided his presentation of a defense, other than to allow more time to prepare. The South Dakota Supreme Court observed that the addition time the defense requested to examine the discovery with a qualified expert would have resulted in obtaining information that goes to the weight not the admissibility of the DNA evidence. The South Dakota Supreme Court ultimately concluded that Moeller had ample time to prepare for the DNA-related methodology testimony presented at the Daubert hearing, and that the trial court did not abuse its discretion in denying Moeller’s motions for a continuance. State v. Moeller, 616 N.W.2d at 434.

Although the South Dakota Supreme Court phrased its conclusion in terms of an abuse of discretion as opposed to a constitutional standard, in light of the individual findings supporting this conclusion, the result is not different from what it would have been if the facts had been subjected to a constitutional violation analysis. Further, given the leeway afforded the state courts in matters involving the denial of continuances, and the standards set forth in Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), and Morris v. Siam, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983), this Court cannot conclude that Moeller was deprived of any constitutional right in the denial of his requests for a continuance.

ISSUE 3

WHETHER MOELLER’S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL?

In Ground Five of Moeller’s Third Amended Habeas Petition Moeller asserts that his trial counsel provided ineffective assistance of counsel in numerous instances. In his traverse Moeller focuses on counsel’s alleged failure to present evidence at the Daubert hearing that APO-B DNA evidence is unreliable and inadmissible, on counsel’s failure to test a sample of the material purported to be gahnite, and on counsel’s failure to present mitigation evidence at the penalty phase of the trial.

The Supreme Court has set forth the following standard by which claims for ineffective assistance of trial counsel are to be evaluated:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The deficiency prong is met when a defendant shows that counsel’s representation fell below the “ ‘range of competence demanded of attorneys in criminal cases.’ ” Id. at 688, 104 S.Ct. 2052 (quoting McMann v. Richardson, 397 U.S. 759, 770-71, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). The prejudice prong is met when a defendant shows that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Defense Counsel’s Handling of the APO-B DNA Evidence

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court held that the “general acceptance” requirement of the Frye test is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, and that federal trial judges have the gatekeeping task of ensuring that an expert’s testimony both rests on reliable foundation and is relevant to the task at hand. South Dakota has adopted the Daubert test for determining the admissibility of scientific and other expert evidence. See State v. Hofer, 512 N.W.2d 482 (S.D.1994). In State v. Corey, the Supreme Court of South Dakota noted that after the adoption of the Daubert test, general acceptance in the scientific community is no longer required for the admissibility of expert testimony; but rather, the trial judge must simply determine that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. 624 N.W.2d 841 (S.D.2001).

In his traverse Moeller argues that counsel was ineffective in not fully participating in the Daubert hearing and failing to persuade the trial court to deny the admission of the APO-B DNA evidence. Moeller explains why counsel should have accomplished the goal of exclusion of this evidence by stating: “Simply put, although DNA evidence is widely recognized and reliable, APO-B has been found admissible in one reported appellate decision. That decision is Moeller II.”

It is uncontroverted that APO-B DNA testing is not frequently utilized in the forensic community and that it has not been frequently utilized in courtroom proceedings. This Court is aware of the use of APO-B DNA testimony in one other criminal case, a general court martial in which a defendant was convicted of premeditated murder by a an officer panel. See United States v. Thomas, 49 M.J. 200 (U.S. Court of Appeals for the Armed Forces 1998). In the trial in this court-martial, which occurred before the Daubert decision, the prosecution’s expert testified that his laboratory in Germany had conducted research on the APO-B region for 2 years. The Court of Appeals for the Armed Forces noted that only one laboratory in the United States or Canada had attempted to use the APO-B region in their forensic testimony and that the German laboratories determined reliability based on their own validation studies. The Thomas decision also discloses that the use of the APO-B region as a forensic standard had been rejected by the FBI. 49 M. J. at 202-204. The deposition testimony of Dr. Marcia Eisenberg was admitted at the State habeas proceedings. Dr. Eisenberg, who oversees research and development in the area of molecular diagnostic tests for a private laboratory studied the APO-B DNA marker in the early 1990’s. She and her employer determined not to use the APO-B DNA marker for parentage studies because that region of the DNA was complex and created difficulties in distinguishing different DNA types on gels based on that marker. Dr. Eisenberg also testified that other less complex markers became available at that time that made it. easier to distinguish between individuals. Consequently APO-B was never used by her laboratory in actual casework. Dr. Eisenberg further . testified that in 1992 and still at the time of her testimony, APO-B was not generally accepted in the forensic community as a useful forensic marker.

In Moeller v. Weber, 689 N.W.2d 1, 10 (S.D.2004), the South Dakota Supreme Court in reviewing the habeas record observed that Moeller presented no testimony or other evidence that might have led to the exclusion at the Dauberb hearing of any DNA evidence based on any marker other than the APO-B marker. The South Dakota Supreme Court further concluded that “trial counsel was faced with the realization that even if the APO-B DNA evidence was excluded, the. evidence still showed in the remaining analysis that the probability of a person in the Caucasian population having DNA characteristics common to Moeller’s would be 1 in 130 million.” The inclusion of the APO-B DNA evidence resulted in testimony that the probability of a person in the Caucasian population having DNA characteristics common to Moeller’s would be 1 in 14 billion. The South Dakota Supreme Court observed that at Moeller’s trial Defense counsel vigorously cross-examined the State’s DNA experts regarding the methodology, reliability, and control procedures of their DNA testing, and that trial counsel even obtained an admission from the State’s DNA expert that only recently had his laboratory determined that APO-B DNA evidence was reliable forensic evidence and that no other laboratory had made this determination. The South Dakota Supreme Court further observed that trial counsel presented the questionable reliability of the APO-B DNA evidence to the jury to support an inference that the remaining DNA evidence was equally unreliable. Based on these observations and the fact that the APO-B DNA evidence was effectively challenged at trial, the South Dakota Supreme Court concluded that the strategy to forego a vigorous defense against the admission of the APO-B DNA evidence in the Dauberb hearing was not ineffective.

In reviewing the State court’s findings regarding the handling of the ABO-B DNA evidence at the Dauberb hearing and at trial, this Court does not find “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” In addition, this Court does not find the State court’s conclusion regarding the ineffective assistance of trial counsel on this issue to be an “unreasonable application” of clearly established law.

Failure to Test the Alleged Gahnite

Shortly before Moeller’s trial the State disclosed that it’s mineral expert would be testifying that gahnite, a very rare material, was found at both the murder scene and in the left front wheel well of Moeller’s pickup. Although there was considerable testimony regarding the alleged gahnite the specimen was never offered or received into evidence. The mineral samples which were provided to the defense had been lost in the office basement of one of Moeller’s attorneys and located by his secretary shortly before the trial commenced. Defense trial counsel did not have the samples tested to see if they contained gahnite and the trial court refused to conduct a Dauberb hearing regarding the expert testimony that the rare gahnite was located at both the murder scene and in the wheel well of Moeller’s pickup.

Habeas counsel had specimens previously examined by the State’s expert tested on a scan-electron microscope by a geologist from the South Dakota School of Mines and Technology, Dr. Edward Duke. Dr. Duke testified at the State habeas hearing that based on his testing and with a reasonable degree of scientific certainty, that it was “not conceivable” that any of the minerals he examined were gahnite. Dr. Duke further testified that generally his laboratory could get a mineral sample tested within a few days of receiving a request.

The deposition testimony of the State’s mineral expert who testified at Moeller’s trial was received into evidence at the State habeas hearing. The expert testified that he did not preserve the grains of gahnite that he had testified he had found in the samples from the murder scene or in the left front fender well of Moeller’s pickup. These alleged gahnite grains were disposed of even though the expert had written the former State’s attorney on May, 1991, stating that all of the items were in his possession and would be returned when the prosecutor or court need them. The State’s expert testified that he disposed of the alleged gahnite because he was directed to present his findings in a “fairly generalized manner” and because the acetone bromoform he had used on the gahnite sample was a dangerous substance which required disposal. Dr. Duke testified, however, that the hazardous oil used for a visual identification of the grains could be washed off and the grains preserved. Dr. Duke also opined that you would expect a scientist to preserve a mineral so rare as gahnite.

At trial, Moeller’s soil expert testified that ancient glaciers moving through what is now South Dakota deposited the soils now found in the Minnehaha and Lincoln county areas. Moeller’s expert also opined that soils found throughout the eastern part of the state would be substantially similar. Moreover, the expert explained that any mineral deposit, such as gahnite, if found in a specific area of the state would likely be found in other areas of the state due to the manner in which the soils were deposited. Lastly, the defense expert testified that the mineral found by the State’s expert was more likely common spinel, a rare mineral, though not as rare as gahnite.

In rejecting Moeller’s claim that his counsel was ineffective for failing to test the gahnite, the South Dakota Supreme Court found that the trial testimony of the defense mineral expert established that instead of attempting to show that the mineral found in the wheel well was common spinel rather than gahnite, defense counsel chose to proceed with a theory that the State’s expert was mistaken in his conclusion that a soil analysis could isolate any locale in the eastern part of the State because the glacier left basically the same minerals in all parts of eastern South Dakota. The South Dakota Supreme Court reasoned that proceeding under such a theory was neither unreasonable nor ineffective. Moeller v. Weber, 689 N.W.2d at 11.

Defense counsel attempted to exclude the State’s expert’s gahnite testimony by requesting a Dauberb hearing. When that request was denied, defense counsel competently countered the State’s expert testimony with the defense expert’s testimony and argument. The State courts’ resolution of this issue involves no unreasonable application of clearly established Federal law or an unreasonable determination of the facts. Moeller is not entitled to federal habeas relief on his ineffective assistance of counsel claim regarding the failure to test the soil samples.

Failure to Present Evidence in Mitigation During Penalty Phase

In his traverse, Moeller contends that his counsel conducted little, if any, investigation of evidence for the penalty phase. Moeller further contends that his counsel improperly acquiesced to Moeller’s request that his daughter not testify and that the jury not be shown pictures of his grandchild. The defense presented no mitigation evidence at the penalty phase of the trial. However, all three of Moeller’s attorney addressed the jury and pleaded for their client’s life during the penalty phase of the trial. In addition, the State presented only argument, not evidence, at the penalty phase of the trial.

At the State habeas hearing, one of Moeller’s attorneys, Mike Butler, testified that about 60 days before trial Robert VanNorman, an attorney experienced in death penalty cases, was appointed to assist injury selection and in preparing a mitigation case. VanNorman became aware that Moeller had a daughter who had children. This daughter met Moeller for the first time either shortly before or during trial. After the jury convicted Moeller counsel discussed what should be presented in the penalty phase of the trial. Counsel was concerned that presenting evidence from the daughter and Moeller’s step-mother regarding their love for Moeller would allow the State to do as it argued it should be able to do — present evidence of people who did not love Moeller and testimony of why they viewed him as they did. Butler testified, “Based on that, we decided not to take what we thought might be a risk of inviting evidence that we didn’t want the jury to hear about Don’s past.” Butler testified that Moeller advised that he did not want anyone taking the stand and begging for his life and that he was innocent. Butler testified that he believed it was a mistake to not present mitigation evidence and that he had overreacted to the concern of inviting rebuttal evidence and should not have allowed his client to dictate what should be presented in mitigation.

Moeller relies on Silva v. Woodford, 279 F.3d 825 (9th Cir.2002), as authority that his defense counsel was constitutionally defective in failing to present mitigation evidence. The Silva case is factually distinguishable from the case at hand. In the Silva case defense counsel conducted no investigation whatsoever into the defendant’s past and also failed to even minimally assist in the preparation of a possible mental defense related to psychiatric disorders or substance abuse suffered by the defendant. In addition, the Ninth Circuit observed that there was potentially compelling mitigating evidence which could have been presented to the jury during the penalty phase of Silva’s capital murder trial. See also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (petitioner was denied effective assistance of counsel when his attorneys failed to investigate and present substantial mitigating evidence during the sentencing phase of capital murder trial).

In a more recent Supreme Court case, Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007), the Court held that defense counsel’s failure to present mitigating evidence during the sentencing phase in a death penalty case did not deprive the defendant of effective assistance of counsel. In the Schriro case the defendant prohibited his ex-wife and mother from testifying on his behalf. The Supreme Court held that since the defendant actively interfered with and refused to allow the presentation of mitigating evidence and no Supreme Court case had held that counsel was ineffective under those circumstances, the state court’s determination that counsel was not ineffective was not an unreasonable application of clearly established law.

In the case at hand counsel investigated Moeller’s background and later made a reasonable strategic decision not to risk opening the door for damaging rebuttal evidence. Further, the existence of a daughter that Moeller had not met until immediately before his retrial for murder cannot be characterized as substantial mitigating evidence. Under the circumstances of this case, defense counsel was not ineffective for abiding by Moeller’s wishes to not present mitigating evidence. In this and all other claims of ineffective assistance Moeller has not met his burden of demonstrating that the State habeas courts incorrectly determined that he failed to establish ineffective assistance of counsel pursuant to the requirements of Strickland v. Washington.

ISSUE 4

WHETHER THE ADMISSION OF TESTIMONY REGARDING GAHNITE ENTITLES MOELLER TO FEDERAL HABEAS RELIEF?

In ground Six and Seven of his Third Amended Petition Moeller contends that the trial court’s admission of certain testimony, including soils evidence, without proper foundation and the trial court’s decision to admit testimony that a certain mineral was in fact “gahnite” when in fact the mineral was not “gahnite,” were trial errors that had substantial and injurious effect or influence in determining the jury’s verdict and thereby deprived Moeller of his rights to due process of law. In State v. Moeller, 616 N.W.2d at 446-447, the South Dakota Supreme Court opined that based on the extreme rarity of gahnite “whether gahnite was indeed found in both the wheel well of Moeller’s pickup and at the crime scene was a strong piece of circumstantial evidence and material to the issue of guilt.” Although the State’s expert’s disclosure of the alleged gahnite was late and the trial court denied the defense a Daubert hearing on the admission of this testimony, the South Dakota Supreme Court found no abuse of discretion because “the challenged evidence did not present any new scientific theory, and the methodologies were neither complex nor unusual.” 616 N.W.2d at 449. The South Dakota Supreme Court also concluded that Moeller presented no evidence that the methodology was so flawed as to be unreliable. Id.

On the State habeas appeal the South Dakota Supreme Court rejected Moeller’s contentions that the State’s expert’s conclusions were “demonstrably false,” and that because the grains identified by the State’s expert as gahnite were destroyed before his second trial, Moeller was entitled to an inference that the evidence would not support the State’s expert’s conclusions. The South Dakota Supreme Court found no fault with the State habeas trial court’s conclusion that the State soil expert’s conduct was negligent and not a calculated effort to destroy exculpatory evidence. The South Dakota Supreme Court stated that the conclusion that the destruction of the “gahnite” grains did not amount to a violation of Moeller’s right to due process was bolstered by the fact that at the time of the destruction comparable, albeit not identical, evidence was available for Moeller’s review. Moeller v. Weber, 689 N.W.2d at 7-8.

In Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), the Supreme Court considered the extent to which the Due Process Clause of the Fourteenth Amendment requires the State to preserve evidentiary material that may be useful to a criminal defendant. Under the Youngblood decision, due process is held to be violated only if there is bad faith on the part of the government in failing to preserve evidence. See also Carlson v. State, 945 F.2d 1026, 1029 (8th Cir.1991).

In his May 9, 1991 report to the prosecuting attorney, the State’s soil expert stated that the soil samples sent to him were in his possession and would be returned “when either you or the Court requires them.” The State’s soil expert testified in a deposition used for the State habeas proceedings, however, that he did not preserve the grains of gahnite that he had testified he observed under the microscope. He testified that he disposed of the gahnite because the oils that he had used on it were considered carcinogenic. The State’s soil expert further testified that another reason he did not preserve the gahnite was that he was directed by the prosecuting attorney to present his findings in a fairly generalized manner. The State’s soil expert testified that before 1998 he had not advised anyone associated with the prosecution that he had discarded the samples.

Although it evidenced bad judgment to destroy the alleged gahnite grains, this Court cannot conclude that the State habeas court’s determination that the destruction was not in bad faith was “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Also, a review of the testimony presented by the State’s expert regarding the alleged gahnite and the competent testimony challenging that testimony which was presented by the defense expert at Moeller’s trial leads this Court to conclude that the State court’s determination that the admission of the gahnite testimony did not violate Moeller’s right to due process was not an unreasonable application of clearly established Federal law.

ISSUE 5

WHETHER THE ADMISSION OF EXPERT TESTIMONY ABOUT DNA EVIDENCE WAS SO UNRELIABLE AS TO ENTITLE MOELLER TO FEDERAL HABEAS RELIEF?

Moeller contends that the trial court’s decision to admit testimony about APO-B DNA evidence and product rule evidence incorporating this evidence was a trial error that had a substantial and injurious effect or influence in determining the jury’s verdict and thereby deprived Moeller of his rights to due process of law. In addition to previously discussed issues regarding defense counsel’s virtual boycott of the Daubert hearing and the majority of the forensic community’s declination to utilize APO-B DNA evidence, Moeller has presented additional challenges to the reliability of the APO-B DNA evidence admitted at his trial. Moeller contends that the validation studies for APO-B DNA evidence had not been completed when the testing was done in Moeller’s case and that some of the validation work was performed by students. Moeller also takes the position that all of the validation material from the State’s APO-B DNA expert had not been turned over to the defense prior to trial. Although Moeller raises the issue of contamination, his expert at the State habeas proceedings testified in her deposition that she had no concerns about contamination as it related to the testing in Moeller’s case.

In addressing Moeller’s challenges to the validity and reliability of the APO-B DNA evidence, the South Dakota Supreme Court reviewed the guidelines delineated in Daubert and concluded as follows:

In furtherance of our belief that the trial court did not err in admitting the disputed DNA evidence, we note that the habeas court effectively conducted what might be referred to as a “post-conviction” Daubert hearing. During the habeas hearing, Moeller’s DNA expert was allowed to testify at length on problems she perceived in the APO-B testing. However, even at this stage, Moeller’s expert was unable to convince the habeas court that the evidence based on the APO-B marker failed to meet our admission standards. All the habeas court found was that there is disagreement in the DNA community on whether APO-B is a valid marker. Again, perfect agreement is not a prerequisite to admission of scientific evidence.

Moeller v. Weber, 689 N.W.2d at 14.

“Questions regarding admissibility of evidence are matters of state law, and they are reviewed in federal habeas inquiries only to determine whether an alleged error infringes upon a specific constitutional protection or is so prejudicial as to be a denial of due process.” Rousan v. Roper, 436 F.3d 951, 958 (8th Cir.2006), quoted in Bell-Bey v. Roper, 499 F.3d 752, 759 (8th Cir.2007). Although the Court is cognizant of the controversy regarding whether the APO-B marker should be utilized in forensic DNA work, the Court’s review of the trial record discloses that defense counsel competently challenged the use of the APO-B marker in this case. Further, this Court cannot conclude that the admission of evidence regarding the APO-B marker or any other of the DNA evidence infringed upon any specific constitutional protection or was so prejudicial as to be a denial of Moeller’s due process rights.

ISSUE 6

WHETHER THE EXPERT SCHANFIELD’S ACTIONS IN CONTACTING THE STATE AND ACTING AS ITS EXPERT AFTER HAVING BEEN RETAINED BY THE DEFENSE ENTITLES MOELLER TO FEDERAL HABEAS RELIEF?

Moeller contends that the trial court’s decision to allow expert witness Schanfield to testify for the prosecution after having been retained as a consultant for Moeller deprived Moeller of his rights to due process. In 1990, prior to Moeller’s first trial, the prosecution hired Dr. Moses Schanfield to performed conventional serological tests and extract DNA so that it could be sent to another lab for testing. At the time Schanfield’s lab was not conducting DNA testing. In January of 1992 Moeller filed a motion to appoint Dr. Schanfield as an expert for the defense to conduct forensic DNA testing and for review and replication of tests conducted at the direction of the State. The trial court granted this motion.

In May of 1992 Schanfield received defense samples, and in compliance with the directives of the defense, DNA was extracted but no tests were conducted. In June of 1992 Schanfield testified for the prosecution at the Frye hearing on the issue of the admissibility of DNA PCR-based testing of the DQ-alpha marker. After testifying at the Frye hearing, Schanfield approached the prosecution and advised that his lab had developed the capability to conduct PCR-based APO-B DNA typing. The prosecution then wrote the defense and asked whether Moeller intended to pursue the APO-B testing with Schanfield. Moeller’s attorney contends he responded that the inquiry was premature because the trial court had not yet issued a decision on whether to admit any PCR-based typing. Defense counsel also indicated that he wished to review Schanfield’s validation studies before determining whether to. pursue the APO-B testing.

The prosecution then directed Schanfield to conduct the DNA tests on its samples. The results of these tests failed to exclude Moeller as a possible semen donor on the fluids taken from the victim. Approximately two weeks into Moeller’s first trial, the prosecution sought to introduce the evidence of the PCR-based APO-B typing. The defense objected to the introduction of this evidence on the basis that it was untimely offered and demanded a Frye hearing. The trial court in the first trial then excluded the APO-B evidence.

After the reversal and remand and prior to the second trial, the prosecution again moved to introduce Schanfield’s APO-B DNA evidence. Moeller then filed a motion to exclude the evidence on the grounds of prosecutorial misconduct. Moeller alleged that the prosecution and Schanfield improperly acted in collusion by conducting APO-B typing without informing the defense and without its approval. The trial court in the second trial denied the defendant’s motion to suppress and allowed the admission of Schanfield’s testimony.

On direct appeal Moeller argued that the inclusion of Schanfield’s APO-B tests violated his attorney-client privilege, his Sixth Amendment right to effective counsel, and his Fifth Amendment rights to due process and protection against self-incrimination. In rejecting these arguments the South Dakota Supreme Court acknowledged the existence of considerable conflict of authority regarding the circumstances under which an expert witness retained by one party may testify upon the request of the other party. The South Dakota Supreme Court concluded, however, that there was no abuse of discretion in admitting Schanfield’s expert testimony because both sides were aware that Schanfield was performing work for the other side. Although the Court noted it did not condone such a practice, it saw no prejudice under the facts of the case. State v. Moeller, 616 N.W.2d at 445.

Moeller presents no persuasive authority which supports a determination that the South Dakota Supreme Court’s resolution of this issue was contrary to, or involved an unreasonable application of clearly established Federal law, or that the decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State proceedings. Consequently, Moeller is not entitled to Federal habeas relief on this issue.

ISSUE 7

WHETHER MOELLER WAS DEPRIVED OF DUE PROCESS WHEN THE TRIAL COURT RESPONDED TO A JURY QUESTION REGARDING THE MEANING OF LIFE IMPRISONMENT WITHOUT TELLING THE JURY THAT LIFE WITHOUT PAROLE MEANT LIFE WITHOUT THE CHANCE OF PAROLE?

After the jury had deliberated in the sentencing phase of Moeller’s trial, the jury sent a note asking the following question:

If the penalty of “life imprisonment without parole” should be imposed upon the defendant, will he EVER have a chance to appear before a parole board?

In response to the note, the trial court responded:

We acknowledge your note asking questions about life imprisonment without parole. All of the information which I can give you is set forth in the jury instructions.

S.D.C.L. § 24-15-4 provides: “No inmate sentenced to life imprisonment is eligible for parole by the Board of Pardons and Paroles.” Prior to a 2004 modification of this statute the statute read: “A person sentenced to life imprisonment is not eligible for parole by the Board of Pardons and Paroles.” Moeller had requested that the jury be instructed, “You are to assume that if you sentence Donald Moeller to life imprisonment, he will spend the rest of his life in prison.” This instruction was denied. Moeller contends that the failure to give his instruction and the manner in which the trial court answered the jury’s question denied Moeller of due process.

In rejecting Moeller’s argument the South Dakota Supreme Court in Moeller’s direct appeal analyzed and distinguished Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), from the facts of Moeller’s case. State v. Moeller, 616 N.W.2d at 461-462. In Simmons a plurality of the United States Supreme Court held that when a state has raised the specter of the defendant’s future dangerousness, the defendant’s due process rights are violated by refusing to instruct the jury that, as an alternative to the death sentence, a sentence of life imprisonment carries with it no possibility of parole. The plurality further held in Simmons that the trial court’s jury instruction that life imprisonment was to be given its ordinary meaning and that the jury was not to consider parole did not satisfy in substance the defendant’s request for a jury charge on parole ineligibility when the jury had submitted the following question: “Does the imposition of a life sentence carry with it the possibility of parole?” 512 U.S. at 160, 114 S.Ct. 2187.

In distinguishing Simmons from Moeller’s case the South Dakota Supreme Court in Moeller’s direct appeal noted that future dangerousness was not specifically raised as a concern by the State, and that while not explicitly instructed that “life means life,” the jury in Moeller’s trial was informed that a sentence of life imprisonment was “life imprisonment without parole.” The Court observed that these were the words used on the sentence verdict form. State v. Moeller, 616 N.W.2d at 461. The South Dakota Supreme Court concluded that the jury was instructed as to “life imprisonment without parole,” and that there was no abuse of discretion in the trial court’s rejection of Moeller’s additional instruction referencing the same. The South Dakota Supreme Court also relied on its previous holding in Rhines v. Weber, 608 N.W.2d 303. (S.D.2000), and noted that the trial court acknowledged patterning its response to the jury question after the Rhines trial court’s response to a similar set of questions, which response was met with approval on appeal. 616 N.W.2d at 462.

In Shafer v. South Carolina, 532 U.S. 36, 43, 121 S.Ct. 1263, 149 L.Ed.2d 178 (2001), which was decided after Moeller’s death sentence was affirmed on direct appeal, the state during the sentencing proceeding in another South Carolina death penalty case introduced evidence of the defendant’s criminal record, past aggressive conduct, probation violations and misbehavior in prison. The trial judge twice quoted from the state statute in advising the jury “life imprisonment means until the death of the defendant.” The judge did not instruct that a life sentence, if such was recommended by the jury, would be without parole. During sentencing deliberations the jury submitted the following two questions:

“1) Is there any remote chance for someone convicted of murder to become elig[i]ble for parole?

2) Under what conditions would someone convicted for murder be elig[i]ble.”

The trial judge in Shafer eventually responded to the questions with the following instruction:

“Section 16-3-20 of our Code of Laws as applies to this case in the process we’re in, states that, quote, for the purposes of this section life imprisonment means until the death of the offender, end quote.” “Parole eligibility or ineligibility is not for your consideration.”

532 U.S. at 44-45,121 S.Ct. 1263.

The trial judge in Shafer refused the defense request to advise the jury that a person subject to life imprisonment was ineligible for parole. In closing argument, defense counsel had plead to the jury that, if Shafer’s life is spared, he would “die in prison” after “spending] his natural life there.” The jury unanimously recommended the death penalty. The South Carolina Supreme Court on appeal ruled that Simmons no longer governed capital sentencing under South Carolina’s death penalty statutes.

The prosecution in the Shafer case argued before the United States Supreme Court that the defense counsel’s closing pleas and the trial judge’s instructions reiterating that “life imprisonment means until the death of the defendant” satisfied the requirements of Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). The Supreme Court rejected this argument by reasoning that the jurors would not have sought further instruction if defense counsel’s closing argument or the judge’s instructions had provided “any clear understanding of what a life sentence means.” 532 U.S. at 53, 121 S.Ct. 1263. The Supreme Court in Shafer further opined that the court’s final instruction that “[pjarole eligibility or ineligibility is not for your consideration,” did not prevent the jury from being misled and may well have been construed to mean “ ‘that parole was available but that the jury, for some unstated reason, should be blind to this fact.’ ” Shafer, 532 U.S. at 53, 121 S.Ct. 1263(quoting Simmons, 512 U.S. at 170, 114 S.Ct. 2187).

The prosecution in Shafer maintained that it had not argued future dangerousness as a predicate for a Simmons charge. The United States Supreme Court determined, however, that this issue was not ripe for resolution in the Shafer case because the South Carolina Supreme Court had not homed in on that question, and reversed and remanded the case for further proceedings. Shafer, 532 U.S. at 55, 121 S.Ct. 1263.

Moeller cites to a subsequent Supreme Court death penalty case, Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002), in challenging the South Dakota Supreme Court’s conclusion that future dangerousness was not raised as a concern in Moeller’s case. In the Kelly case the prosecutor at the sentencing proceeding presented testimony that the defendant had made a knife while in prison and had taken part in an escape attempt with plans to hold a female guard hostage. The prosecutor also cross-examined a psychologist to present evidence of the defendant’s sadism at an early age and of his “current desires to kill anyone who irritated him.” 534 U.S. at 727, 122 S.Ct. 999. In closing argument, the prosecutor in Kelly referred to the defendant as a “dangerous” “bloody” “butcher.” The defense counsel’s request for a jury instruction stating that the defendant would be ineligible for parole if he received a life sentence was refused. This refusal was based on the trial court’s conclusion that the State’s evidence went to the defendant’s character and characteristics, and not to his future dangerousness. In affirming the defendant’s death sentence, the South Carolina State Supreme Court concluded that future dangerousness was not in issue so that Simmons was inapposite.

The United States Supreme Court rejected the South Carolina State Su